Re: The 'other' OLC memo - the 4th Amendment doesn't apply in the US.

[David Farber <dave () farber net>]

________________________________________
From: Robert Atkinson [rca53 () columbia edu]
Sent: Friday, April 04, 2008 1:45 AM
To: David Farber
Subject: Re: [IP] The 'other' OLC memo - the 4th Amendment doesn't apply in the US.

Dave,

It's not surprising that a reasonable legal opinion could conclude that, the
NSA, a military organization, does not need a warrant to intercept enemy
communications on the battlefield on one of (at least?) three grounds: 1)
the normal "exigent circumstance" exception to the warrant requirement; 2)
there is no reasonable expectation of privacy on the battlefield; or 3) the
warrant requirement conflicts with presidential "war powers" and, in a time
of war and on the battlefield, "war powers" trump other constitutional
protections (as they have in the past with the Emancipation Proclamation,
for example). My guess is the OLC memo in question reached the last
conclusion, which is why the NSA program is described by the Administration
as being "lawful." While the memo may be currently "inoperative," it
wouldn't be surprising that the same conclusions are reached by future
Administrations (probably after the next terrorist attack within the United
States) and then the Supreme Court would have to decide if the analysis was
correct or not.

Bob



On 4/3/08 5:24 PM, "David Farber" <dave () farber net> wrote:

> ________________________________________
> From: eackerma () gmail com [eackerma () gmail com] On Behalf Of Ethan Ackerman
> [eackerma () u washington edu]
> Sent: Thursday, April 03, 2008 5:06 PM
> To: David Farber
> Subject: The 'other' OLC memo - the 4th Amendment doesn't apply in the US.
>
> Greetings Dave,
> There's been a significant bit of press lately around the 'torture'
> memo authored by the Office of Legal Counsel at the DoJ, but some
> important FOIA work by Jameel Jaffer and others at the ACLU has
> identified at least one other equally troubling bit of legal guidance
> from that office.
>
> Apparently, in Oct. 2001, that office drafted an opinion (in effect
> for at least 16 months) directing that 4th Amendment constraints on
> searches and seizures did not apply to military actions on US soil.
> The specifics of the memo are not known, as it is still classified,
> but it was acknowledged by the White House and was described in other
> opinions that were released. The White House has stressed that the
> opinion is no longer in effect.
>
> Coverage -
> http://online.wsj.com/article/SB120719428053885709.html?mod=googlenews_wsj
>
> http://ap.google.com/article/ALeqM5hJKgeE0Z-SivATjok-utYBdh9wDwD8VQ1U0G0
>
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